[Introduced February 14, 2012; referred to the Committee on
Government Organization; and then to the Committee on the
Judiciary.]

____________

A BILL to amend and reenact §30-6-3 and §30-6-22 of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§61-12-9 of said code, all relating to professions and
occupations; Board of Funeral Service Examiners; definitions;
specifically including the surviving spouse and a designated
individual previously chosen by the deceased as a person who
may designate the manner of disposition of a deceased person’s
body; crimes and their punishment; postmortem examinations;
permits required for cremation; criminal penalties; and
establishing an order of precedence among persons as to
disposition of remains.

Be it enacted by the Legislature of West Virginia:

That §30-6-3 and §30-6-22 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §61-12-9 of said
code be amended and reenacted, all to read as follows:

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 6. BOARD OF FUNERAL SERVICE EXAMINERS.

§30-6-3. Definitions.

As used in this article, the following words and terms have
the following meanings, unless the context clearly indicates
otherwise:

(a) “Apprentice” means a person who is preparing to become a
licensed funeral director and embalmer and is learning the practice
of embalming, funeral directing or cremation under the direct
supervision and personal instruction of a duly licensed embalmer or
funeral director.

(b) “Authorized representative” means a person legally
authorized or entitled to order the cremation of the deceased, as
established by rule. An authorized representative may include the
following and sha1l be considered in the following order of
precedence:

(1) The deceased person prior to his or her death through a
last will and testament, advance directive or preneed funeral
contract;

(2) The surviving spouse if he or she cohabited with the

deceased at the time of death;

(3) A person previously designated in a signed notarized
writing by the deceased to make such a decision: Provided, That no
person may be designated to serve in such capacity for more than
one nonrelative at any one time;

(2)(4) The deceased’s next of kin;

(3)(5) A court order;

(4)(6) A public official who is charged with arranging the
final disposition of an indigent deceased; or

(5)(7) A representative of an institution who is charged with
arranging the final disposition of a deceased who donated his or
her body to science.

(c) “Board” means the West Virginia board of funeral service
examiners.

(d) “Certificate” means a certification by the board to be a
crematory operator.

(e) “Courtesy card holder” means a person who only practices
funeral directing periodically in West Virginia and is a licensed
embalmer and funeral director in a state which borders West
Virginia.

(f) “Cremated remains” or “cremains” means all human remains,
including foreign matter cremated with the human, recovered after
the completion of cremation.

(g) “Cremation” means the mechanical or thermal process
whereby a dead human body is reduced to ashes and bone fragments
and then further reduced by additional pulverization, burning or
recremating when necessary.

(h) “Crematory” means a licensed place of business where a
deceased human body is reduced to ashes and bone fragments and
includes a crematory that stands alone or is part of or associated
with a funeral establishment.

(i) “Crematory operator” means a person certified by the board
to operate a crematory.

(j) “Crematory operator in charge” means a certified crematory
operator who accepts responsibility for the operation of a
crematory.

(k) “Deceased” means a dead human being for which a death
certificate is required.

(l) “Embalmer” means a person licensed to practice embalming.

(m) “Embalming” means the practice of introducing chemical
substances, fluids or gases used for the purpose of preservation or
disinfection into the vascular system or hollow organs of a dead
human body by arterial or hypodermic injection for the restoration
of the physical appearance of a deceased.

(n) “Funeral” means a service, ceremony or rites performed for
the deceased with a body present.

(o) “Funeral directing” means the business of engaging in the
following:

(1) The shelter, custody or care of a deceased;

(2) The preparation of a deceased for burial or other
disposition;

(3) The arranging or supervising of a funeral or memorial
service for a deceased; and

(4) The maintenance of a funeral establishment for the
preparation, care or disposition of a deceased.

(q) “Funeral establishment” means a licensed place of business
devoted to: The care, preparation and arrangements for the
transporting, embalming, funeral, burial or other disposition of a
deceased. A funeral establishment can include a licensed
crematory.

(r) “Funeral service licensee” means a person licensed after
July 1, 2003, to practice embalming and funeral directing.

(s) “License” means a license, which is not transferable or
assignable, to:

(1) Practice embalming and funeral directing;

(2) Operate a crematory or a funeral establishment.

(t) “Licensee” means a person holding a license issued under
the provisions of this article.

(u) “Licensee in charge” means a licensed embalmer and funeral
director who accepts responsibility for the operation of a funeral
establishment.

(v) “Memorial service” means a service, ceremony or rites
performed for the deceased without a body present.

(w) “Mortuary” means a licensed place of business devoted
solely to the shelter, care and embalming of the deceased.

(y) “Registration” means a registration issued by the board to
be an apprentice to learn the practice of embalming, funeral
directing or cremation.

(z) “State” means the State of West Virginia.

§30-6-22. Disposition of body of deceased person; penalty.

(a) No public officer, employee, physician or surgeon, or any
other person having a professional relationship with the deceased,
shallmay send, or cause to be sent to anyan embalmer, funeral
director or crematory operator the body of anyadeceased without
first inquiring the desires of the deceased by virtue of a last
will and testament, advance directive or preened funeral contract;
the surviving spouse, if he or she cohabitated with the deceased at
the time of death; a person previously designated in a signed
notarized writing by the deceased to make such a decision:
Provided, That no person may be designated to serve in such
capacity for more than one nonrelative at any one time, the next of
kin, or any persons who may be chargeable with the funeral expenses
of the deceased. If any next of kin or person can be found, his or
herIf there is no prior directive, designated individual or
surviving spouse, then the authority and direction of any next of
kin or persons who may be chargeable with the funeral expenses of
the deceased shall be used as to the disposal of the body of the
deceased.The provisions of this subsection are not applicable if
the remains of the decedent are subject to disposition pursuant to
subsection (b) of this section.

(b) Notwithstanding any provision of this code to the
contrary, a United States Department of Defense Record of Emergency
Data Form (DD Form 93) executed by a declarant who dies while
serving in a branch of the United States Military as defined in 10
U.S.C. §1481 constitutes a valid form of declaration instrument and
governs the disposition of the declarant’s remains. The person
named in the form as the person authorized to direct disposition of
the remains may arrange for the final disposition of the
declarant’s last remains.

(b)(c)Any person who violates the provisions of this section
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $500, nor more than $1,000, or imprisonedconfined in jail not less than ten days nor more than ninety days,
or both fined and confined.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 12. POSTMORTEM EXAMINATIONS.

§61-12-9. Permits required for cremation; fee.

(a) It is the duty of any person cremating, or causing or
requesting the cremation of, the body of any dead person who died
in this state, to secure a permit for the cremation from the chief
medical examiner, the county medical examiner or county coroner of
the county wherein the death occurred. Any person who willfully
fails to secure a permit for a cremation, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $200. A permit for cremation shall be acted upon by the chief
medical examiner, the county medical examiner or the county coroner
after review of the circumstances surrounding the death, as
indicated by the death certificate. The person requesting issuance
of a permit for cremation shall pay a reasonable fee, as determined
by the chief medical examiner, to the county medical examiner or
coroner or to the office of the chief medical examiner, as
appropriate, for issuance of the permit.

(b) Any person operating a crematory who does not perform a
cremation pursuant to the terms of a cremation contract, or
pursuant to the order of a court of competent jurisdiction, within
the time contractually agreed upon, or, if the cremation contract
does not specify a time period, within twenty-one days of receipt
of the deceased person’s remains by the crematory, whichever time
is less, is guilty of a misdemeanor.

(c) Any person operating a crematory who fails to deliver the
cremated remains of a deceased person, pursuant to the terms of a
cremation contract, or pursuant to the order of a court of
competent jurisdiction, within the time contractually agreed upon,
or, if the cremation contract does not specify a time period,
within thirty-five days of receipt of the deceased person’s remains
by the crematory, whichever time is less, is guilty of a
misdemeanor.

(d) Any person convicted of a violation of the provisions of
subsection (b) or (c) of this section shall be fined not less than
$1,000 nor more than $5,000 or confined in the county or regional
jail for a period not to exceed six months, or both fined and
confined.

(e) In any criminal proceeding alleging that a person violated
the time requirements of this section, it is a defense to the
charge that a delay beyond the time periods provided for in this
section were caused by circumstances wholly outside the control of
the defendant.

(f) For purposes of this section, “cremation contract” means
an agreement to perform a cremation, as a “cremation” is defined in
subsection (g), section three, article six, chapter thirty of this
code. A cremation contract is an agreement between a crematory and
any authorized person or entity, including, but not limited to, the
following persons in order of precedence:

(1) The deceased person, prior to his or her death through a
last will and testament, advance directive or preneed funeral
contract;

(2) The surviving spouse if he or she cohabited with the
deceased at the time of death;

(3) A person previously designated in a signed notarized
writing by the deceased to make such a decision; Provided, That no
person may be designated to serve in such capacity for more than
one nonrelative at any one time;

(2)(4) The deceased person’s next of kin;

(3)(5) A public official charged with arranging the final
disposition of an indigent deceased person or an unclaimed corpse;

(4)(6) A representative of an institution who is charged with
arranging the final disposition of a deceased who donated his or
her body to science;

(5)(7) A public officer required by statute to arrange the
final disposition of a deceased person;

(6)(8) Another funeral establishment; or

(7)(9) An executor, administrator or other personal
representative of the deceased.

NOTE: The purpose of this bill is to specifically include the
surviving spouse and a designated individual previously chosen by
the deceased as a person who may designate the manner of
disposition of a deceased person’s body.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.